Case Summary and Outcome

The Constitutional Court of Colombia ruled that a state agency had violated the petitioner’s fundamental rights by denying her access to their offices because she had previously participated in a peaceful protest in front of their building. The petitioner claimed that she was not allowed to enter the building out of racial discrimination, due to her Afrocolombian origins. The Court found that the agency, rather than the building’s management as asserted, had collected personal data on the petitioner after she participated in the protests. This violated the petitioner’s habeas data and equality because she was neither informed of the real reason why she was denied access to the building nor of the existence of “negative data” as a result of her participation in the protest. In the opinion of the Court, the situation was further aggravated because the petitioner was also prevented from conducting legitimate business at the public agency. For all these reasons, the Court decided to protect the petitioner’s fundamental rights and ordered the agency to publicly apologize for its inappropriate conduct, to post a copy of its apology in “a place that could be easily accessed by the public,” to remove from its databases the negative information on the petitioner, and finally, to refrain from carrying out similar practices in the future.

Facts

A Colombian citizen participated in a peaceful protest against a State agency that manages student scholarships and educational loans. Days later, the citizen went to the facilities of the agency to request a forgivable loan to further her studies. Upon arrival at the Agency’s building, the petitioner and her companions were denied access to the facilities. After voicing their grievances, all of them, except the petitioner, were allowed access to the building. The petitioner demanded an explanation and was forced to wait outside the building until one of the agency officials told her that he could receive the documentation for the forgivable credit, but outside of the agency offices.

As a result, the citizen brought a tutela action (an action to enforce constitutional rights) against the public agency. In her opinion, she was denied access to the building because of racial discrimination, due to her Afrocolombian origins. The petitioner stated this situation caused her embarrassment and humiliation because she was the only person who was denied access to the facilities.

In response to the tutela action, the State agency argued that the reason over which the petitioner’s was denied access to their facilities was not attributable to them but to building management. They had been informed that different demonstrations would take place in the city and it should therefore adopt measures to protect the people inside the building. The agency disclosed that because the citizen had participated in a peaceful protest days before, her photo, name and identification number were captured in the security files, so when she tried to enter the building, she was denied access in order to prevent a public order disturbance in the facility.

The Judge of first instance ruled against protecting the petitioner’s rights. The Judge considered the decisions of the building’s administration could not be attributed to the agency and, in her view; the building’s management was responsible for blocking the petitioner’s access. However, it cautioned the agency to adopt the necessary measures to guarantee that, in the future, the petitioner or any other member of the Afro-descendant community could access its facilities. The petitioner did not appeal the decision.

The Court selected the decision for review; it reversed the first instance ruling and protected the petitioners’ rights. Accordingly, it ordered the State agency to publicly apologize and refrain from similar acts in the future.

Decision Overview

The Court had to decide whether restricting a citizen’s access to a public building because the citizen participated in a peaceful demonstration in front of the building days before, violated the citizen’s rights to equality and freedom of expression.

The Court considered that the right to public and peaceful protest is protected by the Constitution and the international treaties ratified by Colombia. It stated this right is a manifestation of freedom of expression and serves the purpose of “drawing the attention of the authorities and public opinion to a specific issue and the needs of certain social sectors, usually a minority, so they can be taken into account by the authorities” [p. 13]. The Court added, “the Political Constitution guarantees the right to publicly assemble and demonstrate both in a static (meeting) and a dynamic (mobilization) dimension, individually and collectively, and without any discrimination, for this is what is derived from the expression ‘all of of the people.’ All this, without any other condition apart from being peaceful, that is, without violence, weapons or serious public order disturbances. This means that only peaceful protests enjoy constitutional protection. Thus, even while recognizing that a tension exists between exercising the right of assembly and to public and peaceful protests and maintaining public order, the legislator can not exceed the principles of reasonableness and proportionality when it uses its margin of appreciation or establishes a restriction whose vagueness frustrates this right” [p. 13].

Furthermore, the Court stated that all citizens have the right to “know, update and rectify the information on themselves contained in public and private registries and databases” [p. 15]; this is known as the right to habeas data, which is protected by the Constitution and has been extensively developed by constitutional jurisprudence. This right also has a dual dimension which encompasses, first, that data subjects grant “consent to authorize the collection, storage and handling of the data” [p. 15 and 16], and, second, that data subjects know “the information that is collected on them, so they can request that it be updated and rectified when necessary [p. 16].

The Court especially emphasized that “black lists” containing only negative data are prohibited in a democratic and transparent State [p. 17].

In reference to the case under review, the Court considered that although State entities could, in principle, restrict access to their facilities by exercising their right of admission and permanence, they could not exercise this right when it involves a suspect classification, such as an individual’s ethnic or racial origin. The Court added that the action was aggravated because access was only denied to the petitioner, in the presence of the other people whose access had also been denied originally.

For the Court it was clear that “although [the agency] generally stated that it was the building’s management … who took the decision to deny access to the petitioner … what is clear from the information in the file is that the reason for preventing the petitioner’s access on that date, corresponded to the actions of the petitioner herself … when she participated in the peaceful occupation of the said offices and the entity added to its database, ‘do not allow access’”[p. 27] [emphasis in the original]. This violated the petitioner’s habeas data and equality, among other rights, because the reason why she could not enter the building was not informed to her at any time. In addition, she was not informed of the existence of “negative data” as a result of her participation in a protest that took place days before. In the opinion of the Court, the situation is further aggravated “when not only this information is withheld from the person concerned, but it is used to further limit their fundamental rights when they wish to conduct a procedure or transaction in the premises, as was the case here” [p. 28].

For all these reasons, the Court decided to protect the petitioner’s fundamental rights and ordered the agency to publicly apologize for its inappropriate conduct, to post a copy of its apology in “a place that could be easily accessed by the public,” to remove from its databases the negative information on the petitioner, and finally, to refrain from carrying out similar practices in the future.

Judge Luis Ernesto Vargas Silva wrote a concurring opinion. He indicated that while he agreed with the Court’s decision, it had failed to conduct a more rigorous analysis of the right to protest as a manifestation of the right to freedom of expression.